City of Fort Worth v. Crockett, No. 2-03-297-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: John Cayce
• Citation: 142 S.W.3d 550
• Parties: CITY OF FORT WORTH, Appellant, v. Craig CROCKETT, Appellee.
• Decision Date: 29 July 2004
• Docket Number: No. 2-03-297-CV.

142 S.W.3d 550 CITY OF FORT WORTH, Appellant,
v.
Craig CROCKETT, Appellee. No. 2-03-297-CV. Court of Appeals of Texas, Fort Worth. July 29, 2004.

Appeal from the 236th District Court, Tarrant County, Thomas Wilson Lowe III, J.

[142 S.W.3d 551]

Luis E. Fierros, and James A. Riddell, Senior Asst. City Attorneys, Fort Worth, for Appellant.

Chip N. Searcy, Fort Worth, for Appellee.

Panel A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

OPINION ON REHEARING

JOHN CAYCE, Chief Justice.

We withdraw our prior opinion and judgment and substitute the following. We deny Crockett's motion for rehearing and rehearing en banc.

In this recreational use case, the primary issue we must decide is whether the City of Fort Worth has waived its immunity from a suit by Craig Crockett, a recreational user of a bike path in a city park, for the City's alleged failure to fully barricade a dangerous condition on the bike path. Because we conclude that the City's immunity from suit has not been waived, we will vacate the trial court's order denying the City's plea to the jurisdiction and dismiss the case.

In its sole issue on appeal, the City asserts that the trial court erroneously denied its plea to the jurisdiction because Crockett's claims are based on the City's alleged failure to warn about or make safe a dangerous condition of recreational property, for which the City has not waived its immunity from suit or liability. In response, Crockett contends that the denial was proper because his claims against the City are based on its grossly negligent conduct, not on a condition of property. Crockett further contends that the City's complaints are merely based on its assertions of immunity from liability — which is not the proper subject of a plea to the jurisdiction — rather than immunity from suit.

A plea to the jurisdiction challenges the trial court's authority to determine

142 S.W.3d 552

the subject matter of the action.¹ Whether the trial court had subject matter jurisdiction is a question of law that we review de novo.² The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction.³ In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader.⁴ We must also consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised.⁵

Governmental entities such as the City are immune from suit unless the legislature has expressly consented to the suit.⁶ Absent legislative consent to sue a governmental entity, the trial court lacks subject matter jurisdiction over the case.⁷ The Texas Tort Claims Act provides a limited waiver of sovereign immunity from suits for personal injuries caused by a condition or use of tangible real property, including premise defect claims.⁸ The immunity waiver is, however, further limited by the Texas Recreational Use Statute.⁹

Under the recreational use statute, the governmental entity does not assure that the premises are safe for recreational use, and its only duty to recreational users is that owed to a "trespasser on the premises" — to refrain from causing injury willfully, wantonly, or through gross negligence.¹⁰ Trespassers take the premises as they find them, and landowners owe them no duty to warn of dangerous conditions.¹¹ Therefore, a governmental unit has no duty to warn recreational users of dangerous conditions on the premises.¹² It is undisputed that the recreational use statute applies to this case.

We first consider Crockett's contention that the City's duty to recreational users merely pertains to its immunity from

142 S.W.3d 553

liability and not to its immunity from suit. The Tort Claims Act waives immunity from suit only to the extent that it waives immunity from liability.¹³ Although the Tort Claims Act waives immunity from liability for some premise defects, it also provides that this liability waiver is limited by the recreational use statute.¹⁴ Thus, the Act limits its waiver of immunity from suit to the extent that its waiver of immunity from liability is limited by the recreational use statute.¹⁵

While the City's plea to the jurisdiction was not a model of clarity, it nonetheless asserted that the trial court lacked subject matter jurisdiction over the case because Crockett had not pleaded a cause of action that fell within the Tort Claims Act's immunity waiver.¹⁶ Therefore, the issue of the City's waiver of immunity from suit — and the trial court's concurrent lack of subject matter jurisdiction — was properly before the trial court.

We now turn to the City's contention that it has not waived its immunity from suit as to Crockett's claims. No evidence on the jurisdictional issue was presented in the trial court; therefore, we look solely to Crockett's pleadings to resolve this matter.

Crockett's pleadings allege as follows:

In May 2002 at approximately 9:00 p.m., Crockett was riding his bicycle on a biking and running path in a city park when he suddenly encountered a five-inch ledge that was under the City's construction or repair. There were no barriers, flags, signs, or warnings at the end of the construction area where the accident occurred, although there were barriers, flags, signs, or warnings at the other end. The City improperly or inadequately used signals, signs, or "hazards" to prevent injury or otherwise control pedestrian or bicycle...